You must have wondered what happens in a situation where the witness is unable to attend the court hearing. Questions like now what will happen in the case usually arise.
In the cases of sickness on infirmity or detriment to public interest or because of the reason that the witness is residing beyond the local limits of the court jurisdiction, A witness may not be able to attend court hearing.
Keeping in mind this issue the court has the power to issue commission under CPC civil procedure code. However it is the rule of jurisprudence, all proceedings must take place in the presence of the parties and before the court. under certain unavoidable circumstances before the court such work is performed by the means of commission.
The main aim and the idea of issuing a commission by the court is to impart justice to the parties.
A role given by the court to a person who is required to act on behalf of the court and deliver full and complete justice. The duty of this person appointed by the court is to record the evidence of a witness who is unable to visit the court.
Section 75 of the code provides that the court has the authority to issue commission keeping in mind the limitations and restrictions. Thus the court has discretionary power to appoint the commissioner.
Rule 2 and 6, State that the court may issue such a commission either so Moto or on the application of any party or witness. A commissioner is usually an advocate who is in the panel of High Court.
A High Court order may extend the term of such an appointment, which is typically three years, but no commissioner may be appointed after that period of time has passed. As per the Article 227, every High Court may enact rules and guidelines that the lower Courts must abide by. A panel of up to four commissioners, appointed by the court to record the evidence, will be made up of young people, including a woman attorney.
The Karnataka High Court ruled in Putappa v. Ramappa A.I.R.1996, that following the issuance of a perpetual injunction, where the issue is the possession of property,
Section 75 to 78 and order number 26 of the CPC deal with the power of the court to issue a commission.
The report and evidence submitted by commissioners are included in record as per in order 26 rule 10 (2) However, the Evidence that is submitted without the report of the Commissioner does not form part of any record. The report is a crucial component of the case and can only be refuted on strong evidence.
The commissioner only has the duty to assist the court by providing the documents and in carrying out the various judicial functions; it can in no form perform judicial functions on behalf of the court. Commissioners can only exercise the power granted by the court. Thus the commission has been issued by the court to provide full and complete justice.